People ex rel. Macdonald v. Leubuscher

INGRAHAM, J.

The relator, being in custody of the respondent, a marshal of the city of New York, presented his petition to the supreme court, alleging that his imprisonment or restraint is by virtue of a certain paper -writing purporting to be a mandate signed by one Edward J. McCabe, commissioner and notary public, and that said McCabe, as such commissioner and notary public, possesses no power or authority whatever, under or by virtue of any valid statute' or other law of the state of New York, to issue a mandate in the nature of that annexed to the petition; and he prayed for a writ of habeas corpus to inquire into the cause of his imprisonment. By the return of the marshal, it appeared that the relator was arrested by him, and is detained by virtue of a writ to him directed, a copy of which is annexed to the return. This writ is entitled, “In the matter of the commission to take the deposition of Gordon MacDonald and-others, issued to Edward J. McCabe, a notary public in and for the-county and city of New York, on the 26th day of March, 1896, by the district court .of Arapahoe county, Colorado, in a certain action therein pending,” between Clarence H. Yenner and others and the-Denver Union Water Company and others; is in the name of the people of the state of New York, and directed to the respondent Louis Leubuscher, as marshal of the city of New York, and to the sheriff of the county of New York; and recites that the person granting the-mandate, a notary public of the state of New York, in and for the-county of New York, was on the 26th day of March, 1898, by a commission duly issued out of and under the seal of the district court of Arapahoe county, Colo., appointed a commissioner in a certain action therein pending, wherein Clarence H. Yenner and others are plaintiffs, and the Denver Union Water Company and others are defendants, to take the depositions of Gordon MacDonald and others, witnesses in said commission named, on behalf of the plaintiffs in said: action; that on the 4th day of April, 1894, a subpcena was duly signed or issued by the Honorable John J. Freedman, one of the justices of the supreme court of the state of New York, directed to the said Gordon MacDonald, commanding him to appear before the undersigned as such commissioner, on the 11th day of April, 1898, to be examined and give his deposition at the instance of the plaintiffs in said cause, which said subpoena was duly served upon said Gordon MacDonald; that, in obedience to said subpoena, the said Gordon MacDonald attended before the said commissioner, and was by him duly sworn as a witness in said cause, in the form prescribed by law, and, in obedience to said subpoena and the direction of said commissioner, attended before said commissioner from day to day thereafter and on this day.; that certain pertinent and proper questions were propounded to said witness by counsel for the plaintiffs in said cause, as follows, to wit [then follows a statement of various questions asked of the said witness]; that said MacDonald refused, “and on this day continues to refuse, to answer each and every said question hereinbefore set forth, without giving any reason or excuse for such refusal, except that he was advised by his counsel not to answer the same; and that the facts sought to be elicited by said questions related to matters of trust committed to the Continental Trust Company, of the city of New York, of which it is an officer”; and that said Clarence H. Venner, one of the plaintiffs in said action, at whose instance the said Gordon MacDonald attended as such witness, made oath that the testimony of said witness in answer to the questions so propounded was so far material that without it the plaintiffs in said cause could not safely proceed with the trial thereof. The mandate then directed and commanded the said marshal forthwith to convey the said Gordon MacDonald into the custody of the said sheriff; and the said sheriff was thereby required to receive the said Gordon MacDonald into his custody in the jail of New York county, and him there safely keep and closely confine, until he shall submit to answer the said questions, and each thereof, so put to him by counsel for plaintiffs in said action, or is otherwise discharged according to law,—and was signed, “Given under my hand, as commissioner and notary public aforesaid, this 26th day of April, 1898. Edward J. McCabe, Commissioner and Notary Public.”

There is annexed to said warrant a copy of a commission issued ia the name of the “People of the State of Colorado, to Edward J. Mc-Cabe, Notary Public in and for the County and State of New York, Greeting,” which recites that certain persons named are material witnesses in a certain cause now pending in the district court of Arapahoe county, state of Colorado, wherein Clarence H. Venner and others are plaintiffs, and the Denver Union Water Company and others are defendants; that witnesses reside at New York, in the county and state of New York; and that their personal attendance cannot be procured at the trial of said cause; and that the depositions of said witnesses are desired by the plaintiffs, pursuant to an order of court entered in said cause on the 18th day of February, 1898, and appointing said McCabe to examine the said witnesses, and authorizing and requiring him to cause said witnesses to come before him at such time and place as he might designate and appoint, and diligently examine said witnesses on the oath and affirmation of said witnesses,,' and faithfully to take the depositions of said witnesses upon all interrogatories and cross interrogatories in respect to the questions in dispute; and said commission was issued in the name of Elias F. Dunlevy, clerk of the district court of Arapahoe county, Colo., and the seal thereof at Denver, in said county and state, and signed, “Elias F. Dunlevy, Clerk. H. W. Harmann, Deputy.” Annexed to the mandate is the affidavit of Clarence H. Venner, one of the plaintiffs in the" action, reciting the issuance of the depositions, the subpoena requiring the relator to appear before the commissioner and testify, issued by one of the justices of the supreme court, the service of said subpoena upon the relator, the attendance of the relator before the commissioner, the questions asked by the relator by counsel for the plaintiff, the refusal of the relator to answer those questions, and a statement by the affiant that each and all of said questions were pertinent and proper, and that the testimony of the said MacDonald, in answer to said questions and each thereof, is so far material that without it the plaintiffs in said cause pending in-said district court in the state of Colorado cannot safely proceed with the trial of said action. There is also annexed to the said warrant a subpcena with proof of service issued by one of the justices of the supreme court. Upon the hearing up- . on this writ and return before a justice of the supreme court, the relator was discharged, upon the ground that McCabe-had no power to commit a witness to jail for refusing to answer questions propounded to him; and the question before us is as to the sufficiency of this alleged mandate of the commissioner to justify a detention of the relator until he should have answered the questions propounded to Mm.

The mandate itself does not in terms adjudge this relator guilty of a contempt, nor does the commissioner appear to have passed upon the materiality of the questions that the relator was required to answer. Indeed, it does not appear that he had power, under the commission, to determine that question, as he is required to take the depositions of the witnesses upon “all interrogatories and cross interrogatories in respect to the questions in dispute.” Nor does it appear that the relator had notice of the application to the commissioner to issue this warrant, or had an opportunity to be heard before he was summarily arrested and deprived of his liberty. The commission is directed to the commissioner, describing Mm as a notary public in and for the county and state of New York; and it appears from a paper annexed to the petition that he was selected, by consent of the parties, as the commissioner before whom this testimony was to be taken. The commission seems to have been issued by the clerk of the court, by the consent of the parties to that action; and whatever power this commissioner had was conferred upon him by his appointment as commissioner by the court of the state of Colorado; and, under the power thus conferred upon him, he is carrying out a mandate of such state within this state. He is not acting under any power conferred upon him by any court or judge of this state. It is claimed that the power which he exercised is conferred upon him by the provisions of section 920 of the Code of Civil Procedure.

By article 3, tit. 3, c. 9, of the Code, provision is made for tailing depositions within this state to be used without the state.

By section 914 of the Code it is provided that:

“A party to an action, suit or special proceeding, civil or criminal, pending In a court without the state, either in the United States or in a foreign country, may obtain, in the manner prescribed in this article, the testimony of a witness within the state, to be used in .the action, suit or special proceeding.”

By section 915 of the Code it is provided that a justice of the supreme court, or a county judge, may issue a subpoena to a witness, commanding him to appear before the commissioner named in the commission.

By section 919 of the Code it is provided that:

“The officer before whom the witness appears, in a case specified in this article, must take down his testimony in writing; and must certify and transmit it to the court, in which the action, suit, or special proceeding is pending, as the practice of that court requires.”

And by section 920 of the Code it is provided that:

“A person who fails to appear, at the time and place specified in a subpoena, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe his deposition, when correctly taken down; is liable to the penalties, which would be incurred in a like case, if he was subpoenaed to •attend the trial of an action in a justice’s court; and, for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon the trial.”

By section 3001 of the Code it is provided that where a witness, attending before a justice in an action, refuses to answer a pertinent and proper question, and the party at whose instance he attended makes oath that the testimony of the witness is so far material that without it he cannot safely proceed with the trial of the action, the justice may, by warrant, commit the witness to the jail of the county.

And by section 3002 of the Code it is provided that:

“The recusant witness must be closely confined, by virtue of the warrant, until he submits to be sworn or affirmed, or to answer, as the case may be, or is otherwise discharged according to law.”

In a late case in the court of appeals (In re Searls, 155 N. Y. 334, 49 N. E. 938) it was held that a justice of the supreme court who had issued a subpoena requiring a witness to attend before a commissioner had no power to punish such witness for a refusal to answer a question put to him in the course of the proceeding; that, as a justice of the peace at a trial had power to punish a witness who refused to appear or to answer a proper question by fine or imprisonment, the witness must be compelled to testify by the commissioner before whom he was examined, or not at all; and while the justice of the supreme court who issued the subpoena could doubtless have punished the defendant for any disobedience of the order to appear before the commissioner, he had no power to punish him for refusing to answer questions in the course of the examination; that the mandate of the justice of the supreme court requiring the witness' to appear before the commissioner was satisfied when the witness appeared to testify; that the contempt charged was a contempt oí the authority of the commissioner acting under the commission and the laws of this state which provided for its due and proper exercise; that the witness could not be required to answer for it except under the provisions of section 920' of the Code, in the manner before the officer there designated.

We are now presented with the question -whether the legislature had the power to confer upon a commissioner, appointed by the courts of another state, to take testimony in this state, power to punish a witness appearing before him for a refusal to answer any question that the party to the action swears is material ahd necessary upon' the trial of the action in the other state, and by a warrant directed to a sheriff to imprison such witness until he should comply with the directions of the commissioner. By section 1 of the fourteenth amendment to the constitution of the. ünited States it is provided: “Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” By section 6 of article 1 of the constitution of the state of New York it is provided that “no person shall be deprived of life, liberty or property without due process of law.” The relator claims and the court below has found that this warrant is not due process of law. This relator has been deprived of his liberty by a-mandate of a commissioner who is appointed by the court of a foreign state to take testimony within this state. That commissioner derived no authority, and does not exercise any judicial function, under the laws of the state of New York. He is not connected in any way with the administration of justice in this states The process that he has isstied is to enforce an order of the court of the state of Colorado, directing him to take the evidence of this relator, and transmit it to such foreign court for the purpose of the trial of that action in such court. His power to act is derived entirely from the appointment of the court of another state. The action in which he assumes to act is pending in the court of an-. other state. Is his warrant commanding a sheriff or marshal to arrest a person who has been summoned before him as a witness, issued by such a person, due process of law in this state? I think it is not. As before stated, the warrant does not in terms adjudge the relator guilty of contempt. It recites that certain pertinent and proper questions were propounded to the witnesses; that the witness refused, and continues to refuse, to answer each and every of said questions; and thereupon commands the marshal to convey the said relator to the custody of the sheriff of the city and county of New York, and commands the said sheriff to receive the said relator into his custody into the jail of New York county,, and to safely keep and closely confine him in such jail until he shall submit to answer the said questions, and each of them. To. justify such a warrant, it must be made to appear that the person arrested under it was in contempt' or had violated some lawful mandate of some officer with authority to propound the question, and this relator could only be deprived of his liberty by due process of law.

In the judicial discussion in cases in which this provision of the constitution of the United States and the constitution of the state of New York has been under consideration, it has been universally-held that due process of law is “law in its regular course of administration through courts of justice.” Bouv. Law Dict., under the head of “Due Process of Law.”

The court of appeals of this state, in the case of Westervelt v. Gregg, 12 N. Y. 209, say:

“Due process of law undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights.”

And in the case of Wynehamer v. People, 13 N. Y. 395, Judge Comstock says:

“The better and larger definition of law is that it means law in its regular course of administration through courts of justice.”

We have it thus authoritatively determined that the process of law, without which no man cambe deprived of his liberty, is process issued in the regular course of administration, through courts of justice. By the constitution of this state, the judicial power is vested in certain courts there named, with authority to the legislature to establish other courts with limited jurisdiction; and the judicial power is exclusively vested in these courts.

In Kilbourn v. Thompson, 103 U. S. 190, Mr. Justice Miller, in delivering the opinion of the court, said:

“It is believed to be one of the chief merits of the American system of written constitutional law that all the powers intrusted to government, whether state or national, are divided into three grand departments,—the executive, the legislative, and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants; and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined.”

Judge Rapallo, in delivering the opinion of the court of appeals in the case of People v. Keeler, 99 N. Y. 480, 2 N. E. 623, says:

“The constitution of the United States declares, in terms, that the judicial-power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may, from time to time, order and establish. Although no similar declaration is contained in the constitution of this state, still, it is a recognized principle that, in the division of power among the great departments of government, the judicial power has been committed to the judiciary, as the executive power has been committed to the executive, department, and the legislative to the legislature; and that body has no power to assume the functions of the judiciary to determine controversies among citizens, or even to expound its own laws so as to control the decisions of the courts in respect to past transactions.”

Turning to the constitution of this state, we find that by article 3 it is provided that the legislative power of the state shall be vested in the senate and assembly. By article 4 it is provided that the executive power shall be vested in a governor. And article 6 provides for the judicial power, and the courts in which it is vested. By that article a supreme court is constituted, with general jurisdiction in law and equity. The court of appeals is constituted to review the decisions made by the supreme court. County courts and inferior courts of record are established, and the constitution regulates the appointment and election of judges of these courts. There is also provision for the election of justices of the peace, with power given to the legislature to establish civil and criminal courts not of record. In addition to the judicial powers granted by article 6 of the constitution, certain powers in their nature judicial are, by the express terms of the constitution, vested in the legislature.

In the case of People v. Keeler, supra, when the question as to the constitutionality of an act of the legislature giving to the legislative bodies a power to punish for contempt was before the court, the court upheld the constitutionality of the statute, only upon the .ground that the statute in question was to enforce the powers in their nature judicial, which were, by the express terms of the constitution, vested in the legislature. A careful study of the opinion in that case makes it, I think, clear, that an act of the legislature authorizing an executive officer of the state to commit a person to jail for a contempt in refusing to obey his mandate, or refusing fto answer questions propounded by him to a person called before him, would be unconstitutional, as a warrant to enforce such a statute would not be due process of law7, within the meaning of ■the constitution.. The power of the legislature to pass an act au- • thorizing one of the legislative bodies to commit for a contempt was upheld, because, the constitution having invested the legislature with certain powers in their nature judicial, the legislature could, by appropriate legislation, provide for the proper exercise of such powers. The court say, at page 482, 99 N. Y., and page 625, 2 N. E.:

“It Is a limited power, and should be kept within its proper bounds; and, when these are exceeded, a jurisdictional question is presented, which is cognizable in the courts.”

The same principle was established in Kilbourn v. Thompson, supra.

It appears, therefore, to be settled that, by the constitution, judicial power is vested in the courts established by or provided for in the constitution, and in other bodies where the constitution, by ■express provision, vests in such other bodies powers in their nature judicial; that the judicial power is exclusively vested in these officers or bodies thus expressly designated by the constitution; .and that the legislature has no power to vest in other bodies or departments of the government judicial powers, or to authorize such other departments or officers of the government to issue process which shall be due process of law.

We come, then, to the question as to whether or not authority given to an individual who is not connected with the administration of justice in this state, who has no judicial power vested in him bjt either the constitution or the legislature, not connected in any way with any of the courts or bodies in whom the judicial power is vested, can be authorized by the legislature to issue a •process which shall be considered due process of law, by which an individual may be deprived of his liberty or his property. It can hardly be claimed that this “commissioner and notary public” is connected with the judicial department of the government of this state. He does not act by virtue of his holding the office of notary public within this state. The addition of that title to his name is merely descrijitio personae. He is not appointed by any state authority, but is appointed by the court of a foreign state. He may as well be a citizen of the foreign state, owing it his allegiance. He receives no compensation for his services from the state or under the laws of this state He is not under the control of any of the officers or departments of the state government. He cannot be punished for an abuse of his power by this state. No appeal from his decision can be taken to any of the courts of this state. He acts without responsibility to any official or department of the state government, and while he does riot formally adjudge a person whom he has determined to imprison in contempt under his warrant, uncontrolled by those officers selected by the people to administer the judicial power of the state, his mandate takes from a citizen of this state his liberty, and from that mandate the citizen has no appeal. If the legislature of this state has power to confer upon this "commissioner and notary public” power by a warrant to commit to prison any citizen of this state who has refused to obey his directions in regard to an examination under a foreign commission issued to take testimony in this state, I can see no reason why a legislature might not grant to the governor» or to the mayor of the city of New York, or to the agent of a governor of any other state or territory appointed to execute some functions within this state, the power to arrest and imprisori, and that a person arrested or imprisoned under such a mandate would have no redress. The court, upon a writ of habeas corpus, could not review the action of the commissioner or other person authorized to issue such a mandate, so long as such person acted within the jurisdiction conferred upon him by the act of the legislature; for by section 2033 of the Code it is provided that, if it appears upon the return that the prisoner is in custody by virtue of a mandate in a civil cause, he can be discharged only in one of the cases specified, neither of which would authorize the court to review the action of the individual issuing the mandate so long as that officer acted under the power conferred upon him by the statute. By subdivision 6 of this section, it is provided that the prisoner can be discharged only where the mandate is not authorized by a provision of law. In other cases where the legislature has given to a public body a right to call witnesses or ascertain questions of fact, it is the supreme court or a justice thereof who was authorized, upon the application of such body or officer, to require a person so called as a witness to answer proper interrogatories; and, upon the failure to obey this direction of the court or a justice thereof, the court is authorized to punish for contempt. But in that case it is the direction of the court or judge before whom the witness is brought that is enforced; and thus around such individual is placed the safeguard of a determination by a judicial officer vested by the constitution and laws with the determination of judicial questions, and his mandate would undoubtedly be due process of law. But by this legislation, construed as it has been by this commissioner, there is attempted to be given to an individual who, so far as appears, is a citizen of another state, acting under the authority conferred by another state, authority to cofne within this state, and, by his simple warrant, deprive a citizen of this state of his liberty. That it could have been the intention of the legislature to invest such an officer with such power seems to me to be impossible to believe; but, whether it was such intention or not, it seems to me clear that any attempt to give to such a person such power in this state would be in violation of the express provisions of the constitution before cited, and would subject a citizen of this state to indefinite imprisonment without due process of law.

It is said that this mandate, not adjudicating the relator guilty of contempt, does not assume to punish him for an offense, but ■simply detains him until he answers the questions which are material in the action in the state of Colorado. In effect, however, the mandate deprives the relator of his liberty until he obeys the -order of the commissioners. If the legislature has power to authorize a person not charged with the administration of justice to -enforce his orders to answer such questions as may be asked by a mandate requiring the imprisonment of a citizen refusing obedience to such orders, I can see no reason why the legislature cannot give to any person power to enforce any orders that he may •give by a similar process. Section 920 of the Code gives no power except to impose a penalty. It provides that a person who fails to appear or to testify or to- sign his testimony is liable to the pen•alties which would be incurred in a like case if he was subpoenaed ■to attend the trial of an action before a justice of the peace, and for that purpose, viz. to impose such penalties, the officer before whom he is required to appear possesses all the powers of a justice of the peace upon the trial. The commissioners are therefore only given power to impose a penalty or punish for refusal to testify, -and I do not think the legislature can confer such power upon this individual.

For this reason, I think the mandate under which the respondent •acted in arresting the relator was absolutely void, and the order appealed from should be affirmed, with $10 costs and disbursements.

McLaughlin, j., concurs.